This post was authored by Sam Bifulco, Touro College Jacob D. Fuchsberg Law Center
Cellco Partnership (Verizon Wireless) sought a special use permit to build a cell phone tower on private property in the Town of Mesilla, New Mexico. Defendants, Town of Mesilla and its Board of Trustees, denied the application for the special use permit which led to this action in the United States District Court, District of New Mexico.
Cellco Partnership had submitted an application to build a 65-foot cell phone tower on private property. They justified the need for the tower by explaining the expansion of services is required to best serve the nearby communities. The Town’s Planning, Zoning, and Historical Appropriateness Commission (PZHAC) received several letters in opposition to the proposal on the grounds that the tower would lower property values, disrupt scenic views, and health concerns.
After the PZHAC public hearing at which time it considered the plaintiff’s application, the board voted unanimously against the project. The commission made five findings of fact which explained: (1) the commission had jurisdiction over the request, (2) the zoning code allows this type of use in Rural Farm zones, (3) the tower would be out of character with the Town’s comprehensive plan, (4) a negative impact would be created by the construction of the tower, and (5) the tower would not be beneficial to the Town. The plaintiff’s appealed the decision to the Board of Trustees. The Board of Trustees affirmed the commission’s decision, and denied the application on the basis of several code violations including use, height, and other compliance concerns.
The plaintiff brought this action to federal court alleging the denial of the application in question violated the Telecommunications Act (TCA), a federal statute which regulates the placement, construction, and modification of wireless facilities by local governments. Specifically, Cellco Partnership argues that this denial conflicts with two provisions of the TCA which, “require that any decision by a local government ‘to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record,’” and that, “local governments must not make decisions that ‘prohibit or have the effect of prohibiting the provision of personal wireless services.’” The court utilized a substantial evidence standard to analyze the above referenced provisions. A substantial evidence standard is one which looks at how a reasonable mind might view the conclusion of the decisionmaker.
The United States District Court determined that the three reasons the Board of Trustees provided in their written decision denying the plaintiff’s application were not supported by substantial evidence and that the plaintiff is entitled to summary judgement on its claim that the decision failed to comply with the Telecommunications Act. The court remanded the case to back to the municipality for further proceedings.
Cellco Partnership v. Town of Mesilla, 2021 WL 5578871 (D. New Mexico 2021).
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